Citation Nr: 9826018
Decision Date: 08/28/98 Archive Date: 07/27/01
DOCKET NO. 94-32 153 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Nashville,
Tennessee
THE ISSUE
Entitlement to a permanent and total disability rating for
pension purposes.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
D. Jeffers, Associate Counsel
INTRODUCTION
The veteran served on active duty from December 1971 to
September 1972.
This case initially came to the Board of Veterans' Appeals
(Board) on appeal from a March 1994 rating decision of the
Nashville, Tennessee, Department of Veterans Affairs (VA),
Regional Office (RO), which denied entitlement to the benefit
sought. The veteran filed a timely notice of disagreement.
The denial was confirmed and continued by rating action and
statement of the case in July 1994. The RO received his
substantive appeal in August 1994. The RO also confirmed and
continued the denial of the benefit sought by rating action
and supplemental statement of the case (SSOC) issued in
November 1994. In August 1996, the Board remanded this case
to the RO for additional development. After attempted
compliance, the RO confirmed and continued the denial of the
veteran's claims for a permanent and total disability rating
for pension purposes by SSOC issued in April 1998. This case
has now been returned to the Board for appropriate
disposition.
REMAND
VA has a duty to assist the veteran in the development of all
facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West
1991); 38 C.F.R. § 3.103(a) (1997). This includes the duty
to obtain VA examinations which provide an adequate basis
upon which to determine entitlement to the benefit sought, as
well as the duty to obtain all relevant treatment records
referred to by the veteran. Littke v. Derwinski, 1 Vet. App.
90 (1991). Examinations must also address the rating
criteria in relation to the veteran's symptoms. Johnson v.
Brown, 9 Vet. App. 7 (1996). Consequently, examinations by
specialists are recommended in those cases which present a
complicated disability picture. Hyder v. Derwinski, 1 Vet.
App. 221 (1991).
As noted above, the Board remanded this case for additional
development in August 1996. A September 1996 letter from the
RO to the veteran requested that he complete release forms
for each health care provider that had treated him for a
cardiovascular disability, to include coronary artery
disease. The veteran failed to respond. Per the Board's
Remand, the RO also obtained copies of the veteran's Memphis
VA Hospital treatment records, and attempted to schedule his
appropriate cardiovascular examination. A December 1997
computer-generated report shows that the veteran failed to
report for his scheduled examination. Consequently, the RO
re-adjudicated and continued the denial of the benefit sought
based on the evidence of record.
Nonetheless, the Board observes that the December 1997
computer-generated printout shows an address that is
different from that provided to the VARO. Initially, it is
noted that there is a presumption of regularity that supports
"the official acts of public officers and, in the absence of
clear evidence to the contrary, courts presume that they have
properly discharged their official duties." Ashley v.
Derwinski, 2 Vet. App. 62, 64-65 (1992). In the instant
matter, the Board observes that in the ordinary course, it is
the VA treatment facility, not the VARO, that schedules and
sends out notification letters concerning the compensation
and pension (C&P) examinations. While it is noted that the
evidence of record does not show that the notification of
examination letter was returned by the United States Postal
Service as undeliverable, the fact remains that the VA
treatment facility sent the notification letter to some place
other than the last address that the veteran provided to the
VARO. As such, the Board finds that veteran was not properly
notified of his scheduled VA examination, and that he must be
afforded another opportunity to attend the same. Therefore,
this case is once again being remanded to the VARO for
appropriate development.
As further evaluation of the veteran's disabilities is
necessary and his last VA C&P examination was almost four
years ago, the Board reminds the veteran that reporting for
all portions of his scheduled VA examination is required, so
that VA may evaluate his claim for pension based on his
entire disability picture. See 38 C.F.R. § 3.655 (1997).
Therefore, it is in the best interests of the veteran to
cooperate with the RO's requests for contemporaneous
information and report for all portions of his scheduled C&P
examination.
The Board also reminds the VARO that recent decisions of the
United States Court of Veterans Appeals (Court) have
redefined the approach to be taken to adjudication of claims
for entitlement to a permanent and total disability rating
for pension purposes. Talley v. Derwinski, 2 Vet. App. 282
(1992); Brown v. Derwinski, 2 Vet. App. 444 (1992). The
Court discussed in the aforementioned decisions, in pertinent
part, the need to ascertain all disabilities affecting
employability, accumulate medical data pertinent to the
nature and severity of those disorders, and rate those
entities under the VA's Schedule for Rating Disabilities
(Rating Schedule). The Court has also instructed that when
considering pension claims, the VA should make sure that each
of the veteran's disabilities has been assigned a rating
under the Rating Schedule. Roberts v. Derwinski, 2 Vet. App.
387 (1992).
Thus, to ensure that VA has met its duty to assist the
veteran in developing all facts pertinent to his claims, the
case is REMANDED to the RO for the following development:
1. The veteran should be requested to
identify all sources of treatment
received for his various disabilities,
and to furnish signed authorizations for
release to the VA of private medical
records in connection with each non-VA
source he identifies. Copies of the
medical records from all sources he
identifies, including VA records (not
already in the claims folder), should
then be requested. All records obtained
should be added to the claims folder.
2. The veteran must then be scheduled
for VA general medical examination, to
include a special cardiology examination,
for purposes of determining whether he is
permanently and totally disabled for
pension purposes. In particular, the
examiners are requested to give an
opinion as to the effect of any
disabilities on employability. All
indicated tests and studies should be
done. All subjective complaints and
objective findings should be reported in
detail. The claims folder should be made
available to the examiners prior to the
examinations, and the examiners are asked
to review the claims folder prior to the
examinations in order to reconcile the
clinical reports of record. In addition,
the examiners should render an opinion as
to the severity of each disability found
and the impact each disability has,
whether singularly or in combination, on
the veteran's employability.
A copy of the VA letter(s) notifying the
veteran of his scheduled C&P
examination(s) must be associated with
the veteran's claims folder.
3. The veteran must also be scheduled
for a comprehensive psychiatric
examination by an appropriate VA
specialist. All indicated tests,
including appropriate psychological
studies with applicable subscales, must
be conducted. Therefore, the veteran's
claims folder should also be made
available to and independently reviewed
by this specialist prior to the requested
study. The examiner is asked to
initially differentiate between the
veteran's impairment due to other
disabilities, to include age as well as
alcohol and drug abuse, and the
occupational and social impairment due to
major depressive disorder. Pursuant to
this initial differentiation, the
examiner must then assign a differential
Global Assessment of Functioning (GAF)
Score for the major depressive disorder,
to the exclusion of other disabilities,
including age as well as alcohol and drug
abuse, consistent with the American
Psychiatric Association's DIAGNOSTIC AND
STATISTICAL MANUAL FOR MENTAL DISORDERS
and explain what each assigned score
represents. A complete rationale for any
opinions expressed, positive or negative,
must be provided.
A copy of the VA letter(s) notifying the
veteran of his scheduled C&P
examination(s) must be associated with
the veteran's claims folder.
4. Following completion of the above
action, the RO must review the claims
folder and ensure that the foregoing
development has been conducted and
completed in full. If this development
is incomplete, appropriate corrective
action is to be implemented. Specific
attention is directed to the examination
reports. If any of the examination
reports do not include fully detailed
descriptions of pathology and all test
reports, special studies or adequate
responses to the specific opinions
requested, that report must be returned
for corrective action. 38 C.F.R. § 4.2
(1997) ("if the [examination] report
does not contain sufficient detail, it is
incumbent upon the rating board to return
the report as inadequate for evaluation
purposes."). See Green v. Derwinski, 1
Vet. App. 121, 124 (1991); Abernathy v.
Principi, 3 Vet. App. 461, 464 (1992);
and Ardison v. Brown, 6 Vet. App. 405,
407 (1994).
5. After the above actions have been
completed, the RO must then re-adjudicate
the veteran's pension claim. To this
end, consideration should be given to any
additional applicable laws and
regulations, including the revised VA
General Rating Formula for Mental
Disorders (38 C.F.R. § 4.130, effective
November 7, 1996) and The Cardiovascular
System (38 C.F.R. § 4.104, effective
January 12, 1998). If the determination
remains unfavorable to the veteran in any
way, he and his representative should be
furnished a supplemental statement of the
case in accordance with 38 U.S.C.A.
§ 7105 (West 1991), which includes a
summary of additional evidence submitted
and any additional applicable laws and
regulations. This document should
include detailed reasons and bases for
the decision reached. Thereafter, the
veteran and his representative should be
afforded the opportunity to respond
thereto.
While this case is in remand status, the appellant and his
representative are free to submit additional evidence and
argument on the appealed issue. Quarles v. Derwinski, 3 Vet.
App. 129, 141 (1992).
Thereafter, the veteran and his representative should be
afforded the opportunity to respond thereto. The case should
then be returned to the Board for further appellate
consideration, if otherwise in order. By this REMAND the
Board intimates no opinion, either factual or legal, as to
the ultimate determination warranted in this case. The
purposes of the REMAND are to further develop the record and
to accord the veteran due process of law. No action is
required of the veteran until he receives further notice.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans' Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1998) (Historical and Statutory Notes).
In addition, VBA's ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been
remanded by the Board and the Court. See M21-1, Part IV,
paras. 8.44-8.45 and 38.02-38.03.
A. BRYANT
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1997).